Chapman v Minaj

Case 2:18-cv-09088 Document 1 Filed 10/22/18 Page 1 of 14 Page ID #:1

1 2 3 4 5 6 7

MANATT, PHELPS & PHILLIPS, LLP ROBERT ROBERT A. JACOBS JACOBS State Bar No. 160350 160350 E-mail: [email protected] [email protected] MAURA K. GIERL (State Bar No. 287430) E-mail: [email protected] [email protected] 11355 West Olympic Boulevard Los Angeles, California 90064-1614 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 Attorneys for for Plaintiff TRACY CHAPMAN

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

TRACY CHAPMAN, Plaintiff, vs.

No. 2:18-cv-9088 COMPLAINT AND DEMAND FOR JURY TRIAL

ONIKA TANYA MARAJ p/k/a NICKI MINAJ MINAJ and DOES 1-10, Defendants.

17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

COMPLAINT AND DEMAND FOR JURY TRIAL


1

Plaintiff Tracy Chapman (“Chapman”) alleges as follows:

2

Nature Of The Action

3

1.

4

willful infringement by Onika Tanya Maraj p/k/a Nicki Minaj (“Maraj”) and Does

5

1-10 (collectively, “Defendants”) of Chapman’s Chapman’s exclusive copyright in and to her

6

well-known musical composition Baby composition Baby Can I Hold You (the You (the “Composition”). “Composition”).

7

2.

Beginning in June 2018, Maraj and her h er representatives and/or agents

8

made multiple requests to license the Composition for use in Maraj’s recording recording

9

(featuring Nas), Sorry (the Sorry (the “Infringing Work”), which, on information and belief,

10

Maraj had already made without the requested license for inclusion on her recently

11

released album, Queen. Queen.

12

3.

Chapman, through her own agents and representatives, repeatedly

13

denied Maraj’s after-the-fact after-the-fact requests requests to use the Composition. Composition. Notwithstanding Notwithstanding

14

those denials, Maraj, on information and belief, provided a copy of the Infringing

15

Work to Aston George Taylor, Jr. p/k/a Funkmaster Flex (“Taylor”), a well-known

16

disc jockey at the popular New York City radio station HOT 97, who then teased

17

the Infringing Work on his Twitter and Instagram accounts, stating that Maraj had

18

given him something “ft @nas” that is “not on her [Queen [Queen]] album”. Taylor then

19

played the Infringing Infringing Work on HOT 97, and, possibly, possibly, through other outlets.

20

4.

This action is necessary to redress Maraj’s disregard and willful

21

infringement of Chapman’s Chapman’s rights under the Copyright Act, and to ensure that her

22

misconduct is not repeated.

23

Jurisdiction And Venue

24 25

5.

This action arises under the United States Copyright Act, 17 U.S.C. §§

101 et seq.

26

6.

This Court has exclusive jurisdiction over this action under 28 U.S.C.

27

§§ 1331 and 1338 in that this action involves claims arising under the Copyright

28

Act.

M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

Chapman brings this copyright infringement action to address the



1

7.

The Court has personal jurisdiction over the Defendants because each

2

of them is domiciled in and/or regularly transacts or solicits business in the State of

3

California.

4 5

8.

Venue in this District is proper under 28 U.S.C. § 1391 because

Defendants are subject to personal jurisdiction in this District.

6 7

9.

Chapman is a resident of the State of California.

8

10.

Upon information and belief, Maraj is a resident of the State of

9 10

California, and, in any event, regularly conducts business in the State of California. 11.

Upon information and belief, Defendants John Does are one or o r more

11

individuals and/or entities who participated in, facilitated, encouraged, and/or had

12

supervisory authority authority over the infringement infringement set forth herein, and are therefore

13

wholly or partially liable therefor.

14

Background

15

Tracy Chapman

16

12.

Chapman is a prominent and Grammy Award-winning singer,

17

songwriter and musician musician who first gained popularity popularity in the 1980s. Chapman’s self-

18

titled debut album (the “Album”), which she released in 1988, features such hits as

19

the Composition and Fast and Fast Car .

20 21 22

13.

The Composition was a huge success, and reached the Top 50 on

Billboard Magazine’s Hot 100 chart. 14.

The Album also was a triumph, garnering Chapman a 1989 Grammy

23

Award for Best Contemporary Folk Album and a nomination for Album of the

24

Year. Chapman won two more more Grammy Awards in 1989 for for Best New Artist and

25

for Best Female Pop Vocal Performance for Fast for Fast Car .

26

15.

Chapman’s achievements continued long after the Album’s release.

27

Throughout the 1990s and 2000s, Chapman received several more Grammy

28

nominations, including for Best Rock Song for Give Me One Reason, Reason, which she


The Parties

2



1

won, and many other awards. awards. At every turn, Chapman’s Chapman’s music has been critically critically

2

acclaimed and respected.

3 4

The Composition

16.

Chapman wrote the Composition between 1982 and 1983, and

5

obtained a copyright registration for the work (and other musical compositions) –

6

PAu000556755 – from the United States Copyright Office on October 20, 1983.

7

17.

After entering into a publishing administration administration agreement with

8

Chapman and receiving a partial assignment of the copyright in the Composition, Composition,

9

SBK April Music, Inc. (“SBK”) obtained a copyright registration for the

10

Composition – PA0000417830 PA0000417830 – on or about May 5, 1989, listing it and Purple

11

Rabbit Music, Chapman’s publishing designee, as the copyright claimants in

12

Composition.

13 14

18.

In or around May 2016, SBK’s rights in the Composition transferred

back to Chapman, Chapman, making her the the sole owner of the the copyright in the Composition. Composition.

15 16

The Infringing Work

19.

Upon information and belief, Maraj recorded the Infringing Work with

17

the intention of including it on her album Queen, Queen, which she released on or about

18

August 10, 2018.

19

20.

The Infringing Work incorporates the lyrics and vocal melody of the

20

Composition, its its most recognizable and and memorable parts. Maraj recorded the

21

Infringing Work using these parts of the Composition without first seeking the

22

authorization to do so.

23

21.

The Composition’s lyrics and vocal melody comprise approximately

24

half of the Infringing Work, and are easily recognizable and identifiable as

25

Chapman’s.

26 27

22.

The amount and substantiality of the use as compared to the

Composition is significant. Indeed, the Infringing Infringing Work uses almost almost all of the

28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

3



1

Composition’s Composition’s lyrics, demonstrating that the two works are strikingly similar.1

2 3

23.

her representatives sought Chapman’s consent to use the Composition.

4

24.

On or around June 26, 2018, a representative from DMG Clearances,

5

Inc. (“DMG”) sent Chapman’s business managers and administrators of her

6

publishing rights rights an e-mail informing informing them that she she had an “A LIST artist” who who

7

wanted to use the Composition, and asking if Chapman was still on a “do not

8

sample or interpolate list”.

9

25.

On or around July 10, 2018, in response to a request for more

10

information regarding the request, the representative from DMG e-mailed a letter to

11

Chapman’s business business manager, stating that she was “working on a sample clearance

12

for . . . recording artist Nicki Minaj”.

13

26.

In the same letter, the representative admitted, “In the song . . . [Maraj]

14

has used interpolations from [the Composition] .” .” (Emphasis added) The

15

representative continued, continued, “Because of the nature n ature of this clearance, the rights that we

16

are looking to secure include the right to use this sample in our new composition in

17

all audio configurations, now known or hereinafter devised, throughout the world,

18

in perpetuity including music video rights and digital downloads and ring tones/ring

19

tunes.”

20

27.

On or around July 16, 2018, Chapman, through her business managers,

21

notified DMG that she would not consent to the use of the Composition in the

22

Infringing Work.

23

28.

Notwithstanding the clear and unequivocal unequivocal denial of the the requested

24

license, on or around July 27, 2018, Gee Roberson, who identified himself as

25

Maraj’s manager, e-mailed Chapman’s business managers, requesting that they

26

connect Chapman with Maraj to discuss an “idea [of Maraj’s] that is one of the

27

1


It was only after Maraj recorded the Infringing Work that she and/or

A chart comparing the lyrics of the Composition with the lyrics of the Infringing Work is appended hereto as Exhibit 1. 4



1

most personal for her that was inspired by [Chapman’s] [Chapman’s] art that [Maraj] would like

2

the opportunity to touchbase touchbase (sic) with [Chapman] [Chapman] about.” Roberson followed followed up

3

on his e-mail with a phone call to Chapman’s business manager.

4

Despite the communications between DMG and Roberson, on the one

5

hand, and Chapman’s representatives, on the other hand, and the blatant use of the

6

Composition in the Infringing Work, on or around July 31, 2018, 2 018, Maraj tweeted

7

that she “had no clue [the Infringing Work] sampled the legend #Tracy Chapman –

8

do I keep my date & lose the record? record? Or do I lose the record & keep my date? date? [D]o

9

we push #Queen back 1week (sic)? (sic)? Ugh! I’m torn, y’all y’all help”. The tweet has since

10 11

been deleted. 30.

On information and belief, on the same day, Maraj published another

12

tweet in which she reached out to Chapman to ask her to clear the license to use the

13

Composition in the Infringing Work.

14

31.

On information and belief, on the same day, Maraj also asked her

15

Twitter followers to vote on whether to delay the release of the then-forthcoming then-forthcoming

16

album Queen in Queen in order to obtain the necessary license for the Infringing Work, or to

17

release Queen without Queen without the Infringing Work.

18

32.

On or around August 8, 2018, Peter Bittenbender called Chapman’s

19

attorney to discuss the Infringing Work and Queen. Queen. On the call, Bittenbender Bittenbender noted

20

that he was asked to telephone Chapman’s attorney on behalf of the producer of the

21

Infringing Work.

22

33.

Following that conversation, Chapman’s attorney sent a confirmatory

23

e-mail to Bittenbender, copying Roberson, to confirm (again) that Chapman had not

24

licensed the use of the Composition.

25

34.

26

Infringing Work.

27

35.


29.

On August 10, 2018, Maraj commercially released Queen without Queen without the

On or around the same day, and in response to Chapman’s attorney’s attorney’s

e-mail, Roberson confirmed confirmed that he already had been “made aware of the denied 5



1 2

36.

On information and belief, on August 11, 2018, Maraj again took to

3

Twitter, this time tweeting, “Sis said no”, apparently referring to Chapman’s

4

continued denial of Maraj’s request to use the Composition.

5

37.

Nevertheless, on information and belief, Maraj, Maraj, or someone acting acting at

6

her direction, reproduced and distributed the Infringing Work to Taylor with the

7

understanding and expectation that Taylor would play the Infringing Work and

8

thereby promote both it and Queen. Queen.

9

38.

On August 11, 2018, Taylor published a series of tweets on Twitter,

10

teasing the Infringing Work’s public release on his HOT 97 radio show, repeatedly

11

indicating that Maraj gave him a copy cop y of the Infringing Work.

12

39.

Specifically, at 10:55 a.m. (PT) on August 11, 2018, Taylor tweeted,

13

“Shhhhhhh!!!! TONIGHT 7PM!!! NICKY GAVE ME SOMETHING!!!

14

@nickiminaj ft @nas !!! (NOT ON HER ALBUM!) GONNA STOP THE CITY

15

TONIGHT!!!!!!!!!!!!!”

16

40.

At 11:34 a.m. (PT) on August 11, 2018, Taylor tweeted,

17

“Shhhhhhh!!!! TONIGHT 7PM!!! NICKI GAVE ME SOMETHING!!!

18

@nickiminaj ft @nas !!! (NOT ON HER ALBUM!) GONNA STOP THE CITY

19

TONIGHT!!!!!!!!!!!!!”

20

41.

At 12:29 p.m. (PT) on August 11, 2018, Taylor tweeted,

21

“Shhhhhhh!!!! TONIGHT 7PM!!! I GOT SOMETHING!!! @nickiminaj ft @nas

22

!!! (NOT ON HER ALBUM!) GONNA STOP THE CITY TONIGHT!!!!!!!!!!!!!”

23

At the end of the tweet, Taylor included an link to his Instagram account, where he

24

had an identical Instagram post.

25

42.

At 2:36 p.m. (PT) on August 11, 2018, Taylor responded to a tweet in

26

which a user asked, “Anyone have a link or know how to listen to @funkflex

27

tonight at 7pm live for when that @NICKIMINAJ and @Nas song drops?” by

28

saying, “Hot97 App!!!!!”


use” of the Composition in the Infringing Work.

6



1

43.

At 7:32 p.m. (PT) on August 11, 2018, Taylor again tweeted,

2

“EXCLUSIVE: @FunkFlex Debuts NEW @NickiMinaj Ft. Nas - Sorry -

3

http://tinyurl.com/y9shont9 http://tinyurl.com/y9shont9 #IFWT”. The link provided in in the tweet tweet connects to

4

Taylor’s website, which, until recently, included an embedded video player that

5

played the Infringing Infringing Work.

6 7 8 9 10

44.

on his radio show on HOT 97 on the evening of August 11, 2018. 45.

After Taylor played the Infringing Work, many Internet users

reproduced the Infringing Work, and published it on several different websites. 46.

Additionally, on information and belief, on August 13, 2018, portions

11

of the Infringing Work, including portions that use the Composition, were played

12

on the “Breakfast Club” radio show on another popular New York City radio

13

station, Power 105.1.

14 15

The Harm Caused By Maraj

47.

The decision to grant or not grant a license for the use of a

16

composition in a derivative derivative work is multi-faceted. multi-faceted. Among other considerations considerations that

17

factor into such a decision are (1) whether the author whose composition would be

18

used wants to be associated with the derivative work or the artists featured on the

19

work; (2) the amount of compensation offered; and (3) the proposed use’s likely

20

effect on the market, including whether it will positively or negatively affect future

21

demand for the use of the composition in question.

22

48.

As a result of the unauthorized use of the Composition in the

23

Infringing Work and the subsequent distribution of the Infringing Work despite

24

Chapman’s clear and repeated denials of o f Maraj’s license requests, Maraj

25

wrongfully deprived Chapman Chapman of the right and opportunity to decide whether to

26

allow the use of the Composition, Composition, and, if so, on what terms. terms. Maraj, thus, has

27

caused Chapman to incur substantial injury, loss and damage as a result of her

28

wrongdoing.


On information and belief, Taylor played the Infringing Work on air

7



1 FIRST CLAIM FOR RELIEF (Copyright Infringement Infringement Against Maraj and Does 1-10)

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

49.

Chapman repeats and realleges each and every allegation contained in

Paragraphs 1 through 48 of the Complaint as if fully set forth herein. 50.

Chapman is the exclusive owner of the copyright in the Composition,

and, as such, has the exclusive rights under the Copyright Act, among other things, to reproduce, distribute, prepare derivative works from and otherwise exploit the Composition, and to allow or not allow third parties to exercise such rights. 51.

Chapman never authorized Maraj or anyone working with her, for her,

on her behalf, or at her direction direction to use the Composition in any manner. manner. To the contrary, Chapman, through her representatives, denied Maraj’s requests to license the Composition for use in the Infringing Work. 52.

Despite the foregoing, Maraj, among other things, prepared the

Infringing Work using the Composition, thereby infringing Chapman’s exclusive right under the Copyright Act to prepare derivative works from the Composition. Composition. 53.

Additionally, upon information and belief, Maraj thereafter reproduced

the Infringing Work and distributed it, thereby infringing Chapman’s exclusive rights under the Copyright Act to reproduce and distribute the Composition. 54.

Maraj’s infringement of Chapman’s rights under the Copyright Act

was deliberate and willful. 55.

The fact that the Infringing Work does not appear on Queen does Queen does not

relieve Maraj of liability to Chapman for her infringement or make Maraj’s wrongdoing any less deliberate and willful. 56.

By reason of Maraj’s infringement, infringement, Chapman has sustained substantial

injury, loss and damage in an amount to be determined at trial, and, upon information and belief, Maraj has derived income and profits to which she is not entitled. 8



1

57.

As a result of Maraj’s actions, the Infringing Infringing Work is available through

2

multiple websites hosted by Internet service service providers all of the world. If Maraj is

3

permitted to continue continue to use the Composition Composition in the Infringing Infringing Work and/or not

4

required to take reasonable steps to stop the continued exploitation of the Infringing

5

Work, Chapman will suffer injury that is not compensable through an award of

6

money damages, and for which she has no adequate remedy at law.

7

Prayer for Relief

8

WHEREFORE, Chapman prays for judgment as follows:

9

A.

10

and employees, and all other persons in active concert and participation with her or

11

acting on her behalf, and each of them, from copying or otherwise using or

12

exploiting the Infringing Work, including its interpolation of the Composition;

13

B.

Permanently enjoining and requiring Maraj and her agents, servants

14

and employees, and all other persons in active concert and participation with her or

15

acting on her behalf, and each of them, to take reasonable steps to prevent third

16

parties from using or exploiting exploiting the Infringing Infringing Work, including including its interpolation interpolation of

17

the Composition; Composition;

18

C.

Awarding Chapman, at her election, either (i) actual damages and the

19

profits derived by Maraj as a result result of Maraj’s Maraj’s infringing infringing activities, or (ii) statutory statutory

20

damages in the maximum amount permitted under applicable law;

21 22

D.

24

Directing that Maraj pay Chapman the costs of this action and her

attorneys’ fees herein;

23

E.

Award Chapman pre-judgment and post-judgment interest on any

monetary award; and

25

F.

26

just and proper.

27

/ / /

28

/ / /


Permanently enjoining and restraining Maraj and her agents, servants

Granting Chapman such other and further relief as the Court may deem

9



1

DEMAND FOR JURY TRIAL

2

Pursuant to Rule 38 of the th e Federal Rules of Civil Procedure, Chapman

3

hereby demands her right to trial by jury of all claims in this Action triable by jury.

4 5

Dated: October 22, 2018

MANATT, PHELPS & PHILLIPS, LLP

6

By: s/ Robert A. Jacobs

7

Robert A. Jacobs Maura K. Gierl

8

Attorneys for for Plaintiff TRACY CHAPMAN

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

10



1

EXHIBIT 1 Comparison Chart (Identical lyrics bolded)

2 3 4 5 6 7

Baby Can I Hold You (the Composition) Sorry Is all that you can’t say Years gone by and still Words don’t come easily Like sorry like sorry

8 9 10 11

Forgive me Is all that you can’t say Years gone by and still Words don’t come easily Like forgive me forgive me

12 13 14 15 16 17 18 19 20 21 22 23

But you can say baby Baby can I hold you tonight Maybe if I told you the right words At the right time you’d be mine I love you Is all that you can’t say Years gone by and still Words don’t come easily Like I love you I love you But you can say baby Baby can I hold you tonight Maybe if I told you the right words Ooh, at the right time you’d be mine

25

Baby can I hold you tonight Maybe if I told you the right words At the right time you’d be mine

26

You’d be mine

24

27

You’d be mine

Sorry (the Infringing Work) Hey, baby Even though you break my heart I still love you Sorry Is all that you can’t say Years gone by and still Words don’t come easily Like forgive me (forgive me) And you can say, baby (baby) My baby, can I hold you tonight? And maybe if I told you the right words Ooh, at the right time You’d be Nas Ayo That bitch is always flippin’ You n****s never listen We make a perfect team Balling Jordan and Scottie Pippen But I’ma let you dip in That wax sauce drippin’ Said that when you with a boss bitch, now you can tell the difference You be like jungle digger I don’t want another n***a I wanna make you ‘bout a legend, but I make you bigger Tinkerbell, Peter Pan No bitches badder than me when I pull pull up Got ‘em screaming like a temper tan’ Ayo, DJ, drop the beat My gun didn’t fall but I drop the heat I love how we kept it on the low, mad discreet (I’m in a rush!)


EXHIBIT 1


1 2

Baby Can I Hold You (the Composition)

Sorry (the Infringing Work) Pass me the keys to my jeep (truck) I hit ‘em with it, I’ma kill ‘em with that wine wine Ain’t losin’ watches, but with me, he always find time We keep it classy when we eatin’ it’s that fine dine But between love and hate, baby, it’s a fine line Sorry Is all that you can’t say Years gone by and still Words don’t come easily Like forgive me (forgive me) And you can say, baby (baby) My baby, can I hold you tonight? And maybe if I told you the right words Ooh, at the right time You’d be Nas A mack I used to mack with the MAC on me Project parties, lights off, mad horny ho rny Dutty wine and feel the gun I’m hidin’ She still grindin’ on me, smilin’ at me I’m like “Hi, I’m Nasty” “God bless ya, met ya’” Thought you were sexy as ever Flexing with your ex, I couldn’t disrespect ya’ Later on, I undress ya, couldn’t wait to sex ya’ Made a n***a wait so long, but it was special Light travel faster than sound Lightning strike one second every point two miles So when you first saw me emerge from a weed cloud

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

2

EXHIBIT 1


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Baby Can I Hold You (the Composition)

Sorry (the Infringing Work) Electricity touch your soul, that’s how I get down Gangsta love Completing each other Touching tongues so close, we could breathe for each other other Untouchable boy with the illustrious girl But maybe being together’s too much for the world, sorry Sorry Is all that you can’t say Years gone by and still Words don’t come easily Like forgive me (forgive me) And you can say, baby (baby) My baby, can I hold you tonight? And maybe if I told you the right words Ooh, at the right time You’d be Nas

16 17 18 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & P H I L L I P S, LLP A T T O R N E Y S A T L AW L OS A N G E L E S

3

EXHIBIT 1

Chapman v Minaj

Recommend Documents